CHAPTER IV.

Judge, Juror, Advocate and Witness.-Official, external and moral Independence of the Judge.-Sanctissimus Judex of the Romans.-The Judge, where there is doubt, must interpret in Mercy, in Penal Cases; in Favor of civil Liberty, in all.-The Institution of the Jury.--The sacred Office of the Juryman. What is he to do, when the Law is contrary to universal Conscience?—The Institution of the Advocate.-Moral Obligation of the Advocate.-Political Relations of Lawyers in Free Countries.-Duties of the Wit

ness.

VIII. FROM all that has been said of justice, as the main and broad foundation of the state, of the superior sway of law as an indispensable requisite of civil liberty and the necessary independence of the judiciary, it must appear that there is no member of the state or officer of government superior in importance to the judge, and very few indeed, of equal importance with him. All mankind, if at all advanced in political civilisation, have agreed that an unjust judge defiles the very altar, for the service of which he was ordained a priest. The religious codes of the most distant and ancient people, the law books of the absolute governments of the East, fettered by hereditary casts, pronounce this universal feeling as distinctly, as the religions, laws or poetry of the modern or freest nationsthe Vedas as well as Shakspeare. A truckling judge fawning on power, whoever may possess it, whether monarch or people, is one of the most offensive and humiliating sights, and a demoralizing example to a

nation. If it be shameful or criminal for a citizen, to whom no peculiar charge has been confided, to betray his country, it is doubly so in a judge to betray justice and liberty by swerving from what is just, true and right, in yielding to power, because to him in particular has their custody been confided, and in forsaking justice and liberty, he forsakes his country. It is painful to peruse the bad periods of monarchies or republics, when judges are found ready to bend the law according to the desire of the monarch or ruling party, and it is comforting indeed when we find on the other hand, men who comprehended the lofty character of the judge, and had sufficient firmness to stand as the independent interpreters or pronouncers of the law, for or against whomsoever this might be. The names of judges, great in their views, calm in their decisions and pure in all their life, who are known by the whole people to have distinguished themselves by unswerving honesty, and stout hearts, judges whose grasp, penetration and blandness of mind were equally great, form a moral element in the history of a nation-a part of the inherited and traditional stock of national virtue, of the greatest value, and give a moral tone and stability to the community, for which nothing else of equally great effect can be substituted. Those great judges which England counts in her history have done more good than the infamous ones, who have disgraced the British bench, have been able to counterbalance with evil. The greater the liberty the greater likewise, as is natural, the necessity of unbiased, clear, learned and strong-minded judges-that is, oracles of the law. This truth of general import has fully appeared from all the preceding parts of this work; but it is necessary

to mention here in particular that the moral independence of the judge, is of most particular importance in republics founded upon an extensive popular principle, this is owing to the fact which has been touched several times, namely that resistance against the crown has something heroical in it, and will seldom fail to awaken the sympathy of the multitude; but resistance against popular clamor, passion or interest, appears in the eye of the excited many as sin and heresy. The American history offers instances of judges, either having been overawed by the clamor of the people, or, which is equally to be shuned, having participated in the general excitement.

The idea, which the Romans entertained of the judge, the Sanctissimus Judex, (Cic. Planc. 13, 32,) and indeed the very origin of the word Judex (1) are characteristic, and distinguish them strikingly, and, in this particular, favorably from the Greeks. The latter likewise acknowledged the law, not only as infinitely superior to the individual charged to execute it, yet also as that which alone should have true supremacy. But this was the case with respect to law in general only. The Greeks never sufficiently separated judicial law, from political and administrative; the judge, therefore, with them never appeared in so sacred a light as with the practical and honest Romans. It might, indeed, be observed here as a general remark, that the Sacrosancta Auctoritas, inherent in the highest offices is quite peculiar to Rome, and indicates one of the most essential features by which that republic so remarkably differed from the Grecian states.

If the judge then ought to be independent in every way, he ought to be, as we have seen in the first part

of this work, independent of the executive and power holder, unswayed by prince or people; (2) he ought to be made independent in his situation; for instance-as to salary, it ought to be sufficient, both to elevate him above want and its influences, and to command the highest talent; for in every well regulated commonwealth a judgeship should always be the last and highest goal the lawyer looks for; and it ought to be fixed, which implies that it should not depend upon fees, (3) which makes the judge dependent upon those whom he judges, or at least it gives that appearance, and that it cannot be diminished whilst he holds the seat, lest he become or be suspected of being dependent upon his employers, the legislature or executive. His independence implies, as we have seen previously, his immovability from office, except by impeachment. Finally it is not sufficient that the judge be placed independently, he must place himself so as much as in him lies. Lord Brougham, lately pronounced himself against judges having any seat as members of elective legislatures, so as not to be dependent upon their constituencies. (4) It is of course, impossible to draw with any distinction, the line beyond which a judge ought not to go in his participation in public political meetings; but certain it is, that he injures the sacredness of his office in the same degree in which he becomes a partisan, and that he ought ever to be mindful that his moral power in pronouncing judgment according to the law already made, will be impaired if he mixes in the excitement which may be connected with the making of it. His moral weight, of the greatest importance in every free country, depends greatly upon the fact, that he can say, "Not I, directly or indirectly in any way whatever, but 76

VOL. II.

the law, which is given to me, and is my master, says thus."

As it is a rule that where a law leaves any doubt, it shall be interpreted in mercy for the prisoner, so ought the judges in a wider sphere to consider themselves as the perpetual servants of civil liberty, and strict government of law; and never to join either the executive or any party, political or religious, in persecutions, in injurious interpretations or distortions of law, or in any even the slightest oppression. Where there is doubt at all, on points of public or constitutional law, the judge ought always to interpret in favor of civil liberty-the earthly god of civilised nations; and finally, he ought not in penal cases to consider the mere disobedience to the law as such, an additional offence besides the crime or offence committed-a view which formerly led but too frequently to harsh punishments, and afforded a basis for the inadmissible penal theory, which derives the punitory power of the state from public vengeance.

(1) Judex from jus-dicere or dicare, as vindex from venum-dicere. The judex, therefore, was not in the eye of the Roman the avenger, as he is called in several languages. So is Justice and Revenge or Retribution in many idioms one and the same word; but Judex meant the pronouncer, avower of right. See the note on the words Right and Jus, appended to one of the sections of chapter iv, book ii, part i.

(2) This applies in a great measure to all law officers, whose ultimate end is the administration of justice. Erskine calls lord Coke-even Coke, "the infamous prosecutor of Raleigh." Defence of Thomas Hardy, for High Treason. The dereliction of duty is equally great, if the sovereign is not a monarch but the people, though it may not be so apparent at the time.

(3) There is a strange anomaly in the British high court of admiralty. The judge has no salary, and consequently very little